Page:Harvard Law Review Volume 32.djvu/386

350 may be, considering the great difference between the organization of the Army and the organization of a peaceful industrial society, the content of military law is Anglo-American criminal law based primarily upon its Maryland form, as far as this is recognized and adopted in the District of Columbia. [U. S. Army] (corrected to April 15, 191 7), paragraph 338 (3, d).

The common law in force in the District of Columbia is the common law of Mary- land.

"We think, therefore, that if it be a common-law offence, committed in this county, it is within the jurisdiction of this Court, whose common-law jurisdiction is derived from the common law of Maryland, which was, by the cession of Maryland and the acceptance of Congress, under the provision in the Constitution of the United States, transferred from Maryland to the United States, with that remnant of State sovereignty, which, after the adoption of the Federal Constitution, was left to Maryland. All the State prerogative which Maryland enjoyed under the common law, which she adopted, so far as concerned the ceded territory, passed to the United States. All the power which Maryland had, by virtue of that common-law prerogative, to pimish, by indictment, offenders against her sovereignty, and to protect that sovereignty, became vested in the United States; and authorized them to pimish offenders against their sovereignty, and to protect that sovereignty by the same means, so far as regarded the territory ceded.

"We therefore think that, in regard to offences committed within this part of the district, the United States have a criminal common law, and that this Court has a criminal common-law jurisdiction." United States v. Watkins, 28 Fed. Cas. No. 16649, 3 Cranch C. C. (U. S.) 441, 452 (1829).

"As against the United States regarded as co-extensive with the Federal union of States and operating within the territorial limits of the States, it is undoubtedly true that there are no common law offences; for the jurisdiction there given to the United States by the Federal Constitution is distinctly and expressly restricted to the powers enumerated in the Constitution. But the statement was not intended to have application to the District of Columbia. The question as to the authority of the United States in this District is not what power has been conferred upon it, but rather what power has been inhibited to it. Subject to the limitations imposed by the Constitution itself and by the spirit of our free institutions, the United States have supreme and exclusive power over the District of Columbia, and they are not limited to the governmental powers in the Constitution specifically enumerated as defining their jurisdiction for the country at large. For the District of Columbia it is competent for the Congress of the United States to declare that the common law is to be regarded as in force, and even in the absence of express statutory enactment we should have to hold, in view of the circumstances, that the common law in its entirety, both in its civil and criminal branches, except in so far as it has been modified by statute or has been found repugnant to our conditions, is in force in the District of Columibia. But we are not left to implication in that regard. Nor is the pro-

"At the time of the cession of the Territory of Columbia by the State of Maryland to the Federal Union, its law, as well as that of the rest of the States, was the common law of England, both civil and criminal, so far as that common law was suited to our condition and was unaffected by statute. And with the common law the State of